The starting date of extinctive prescription and the application of the principle of pleading

The initial date of the extinctive prescription is the starting point of calculating the period of extinctive prescription, which falls under the legal effect requirement of the extinction of the obligation, and it constitutes a specific fact that constitutes the legal requirement of the defense of extinctive prescription, and thus, it is subject to the application of the principle of pleading. Therefore, if the initial date of the extinctive prescription differs from the initial date of the pleading, the court shall calculate the extinctive prescription based on the initial date claimed by the parties in accordance with the principle of pleading. This also applies not only to cases where the parties assert the date later

Article 188 of the Civil Procedure Act, Articles 162 and 166 of the Civil Act

Supreme Court Decision 71Da409 delivered on April 30, 1971 (Gong1980, 12593) 79Da1863 delivered on January 29, 1980 (Gong1980, 12593) (Gong1983, 12566)

ASEAN Electronic Corporation

Seoul High Court Decision 200Na8888 delivered on August 21, 200

Seoul High Court Decision 93Na37726 delivered on June 8, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the extinctive prescription expired prior to March 30, 1994, since Nonparty 1’s credit transaction between the Defendant’s joint and several liability with respect to the goods owed to the Plaintiff at least 413,979,890 won due to the continuous transaction between the Plaintiff and the Plaintiff, and that the said obligation was due on March 30, 1991, which is the final payment date of promissory notes issued for the payment, since the entire payment period was due at latest.

2. However, the initial date of the extinctive prescription is the starting point of calculating the period of extinctive prescription, which falls under the requirements for the legal effect of the extinction of an obligation, and it constitutes a specific fact that constitutes the legal requirement of the defense of extinctive prescription. Therefore, in a case where the initial date of the extinctive prescription and the initial date of the pleading are different, the court shall calculate the extinctive prescription based on the initial date alleged by the parties in accordance with the principle of pleading (see Supreme Court Decision 83Meu437, Jul. 12, 1983). This shall be deemed the same in a case where the parties asserted that the initial date of the initial date of the extinctive prescription should be the initial date after the lapse of the initial date, and barring any special circumstance, the initial date of the initial date of the extinctive prescription should be the same in a case where the court recognizes the period of extinctive prescription based on the initial date after the initial date of the pleading is later than the initial date of the pleading by the parties, and thus, it cannot be deemed that there exists any relationship between the parties's assertion entirely between the facts and the parties, and there is no disadvantage to determine the date of voluntary.

3. According to the records, it is evident that the defendant has a defense of the completion of the extinctive prescription with the starting date of September 30, 1990, which is the starting date of transaction as to the above goods-price obligation. Nevertheless, the court below calculated the period of extinctive prescription with the starting date of March 30, 1991, which is 6 months after the end date. Since it cannot be deemed that there exists the identity between the above two periods, it shall not be deemed that there exists the identity between the above two periods, it shall be in violation of the principle of pleading, and it shall have affected the conclusion of the judgment. Accordingly

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)